Mandatory reporting of child abuse and neglect

Mandatory reporting of child abuse and neglect

CFCA Resource Sheet— May 2016
Mandatory reporting of child abuse and neglect

If you require assistance or would like to talk to a trained professional about the issues described in this paper, please call Kids Helpline on 1800 55 1800 or Lifeline on 13 11 14.

If you believe a child is in immediate danger call Police on 000.

 

This document is provided as a guide only. Individuals are encouraged to contact the relevant department or organisation to clarify requirements in their states or territories, or in relation to legislation. For more information, see Reporting abuse and neglect: State and territory departments responsible for protecting children.

This sheet examines legal provisions requiring specified people to report suspected abuse and neglect to government child protection services in Australia.1

What is mandatory reporting?

Mandatory reporting is a term used to describe the legislative requirement imposed on selected classes of people to report suspected cases of child abuse and neglect to government authorities. Parliaments in all Australian states and territories have enacted mandatory reporting laws of some description. However, the laws are not the same across all jurisdictions. The main differences concern who has to report, and what types of abuse and neglect have to be reported. There are also other differences, such as the state of mind that activates the reporting duty (i.e., having a concern, suspicion or belief on reasonable grounds - see Table 1) and the destination of the report.

This sheet focuses on the major differences features of state and territory laws regarding who must report and what must be reported.

Table 1: Key features of legislative reporting duties: "state of mind" that activates reporting duty and extent of harm.

Jurisdiction

State of mind

Extent of harm

ACT

Belief on reasonable grounds

Not specified: "sexual abuse ... or non-accidental physical injury"

NSW

Suspects on reasonable grounds that a child is at risk of significant harm

A child or young person “is at risk of significant harm if current concerns exist for the safety, welfare or wellbeing of the child or young person because of the presence, to a significant extent, of … basic physical or psychological needs are not being met or at risk of not being met … not receiving necessary medical care … not receiving an education in accordance with the Education Act 1990 … physical or sexual abuse or ill-treatment … serious physical or psychological harm as a consequence of living in a household where there have been incidents of domestic violence … serious psychological harm … the child was the subject of a prenatal report under section 25 and the birth mother did not engage successfully with support services to eliminate, or minimise to the lowest level reasonably practical the risk factors that gave rise to that report”

NT

Belief on reasonable grounds

Any significant detrimental effect caused by any act, omission or circumstance on the physical, psychological or emotional wellbeing or development of the child

QLD

Has a reasonable suspicion

Detrimental effects on the child’s body or the child’s psychological or emotional state that are evident to the person or that the person considers are likely to become evident in the future

SA

Suspects on reasonable grounds

Any sexual abuse; physical or emotional abuse or neglect to extent that the child "has suffered, or is likely to suffer, physical or psychological injury detrimental to the child's wellbeing; or the child's physical or psychological development is in jeopardy"

TAS

Believes, or suspects, on reasonable grounds, or knows

Any sexual abuse; physical or emotional injury or other abuse, or neglect, to extent that the child has suffered, or is likely to suffer, physical or psychological harm detrimental to the child's wellbeing; or the child's physical or psychological development is in jeopardy

VIC

Belief on reasonable grounds

Child has suffered, or is likely to suffer, significant harm as a result of physical injury or sexual abuse, and the child's parents have not protected, or are unlikely to protect, the child from harm of that type

WA

Belief on reasonable grounds

Not specified: any sexual abuse

Australia

Suspects on reasonable grounds

Not specified: any assault or sexual assault; serious psychological harm; serious neglect

Adapted from relevant state and territory legislation.

Who is mandated to make a notification?

The legislation generally contains lists of particular occupations that are mandated to report. The groups of people mandated to notify cases of suspected child abuse and neglect range from persons in a limited number of occupations (e.g., Qld), to a more extensive list (WA), to a very extensive list (ACT, NSW, SA, Tas., Vic.), through to every adult (NT; and Vic. for sexual offences). The occupations most commonly named as mandated reporters are those who deal frequently with children in the course of their work: teachers, doctors, nurses, and police.

What types of abuse are mandated reporters required to report?

In addition to differences describing who is a mandated reporter across jurisdictions, there are differences in the types of abuse and neglect which must be reported. In some jurisdictions it is mandatory to report suspicions of each of the four classical types of abuse and neglect abuse (i.e., physical abuse, sexual abuse, emotional abuse, and neglect). In other jurisdictions it is mandatory to report only some of the abuse types (e.g., Vic., ACT). Some jurisdictions also require reports of exposure of children to domestic violence.

It is important to note that the legislation generally specifies that except for sexual abuse (where all suspicions must be reported), it is only cases of significant abuse and neglect that must be reported. Reflecting the original intention of the laws, the duty does not apply to any and all "abuse" or "neglect", but only to cases which are of sufficiently significant harm to the child's health or wellbeing to warrant intervention or service provision. However, reflecting the qualitative differences presented by sexual abuse as opposed to other forms of abuse and neglect, five jurisdictions apply the reporting duty to all suspected cases of sexual abuse without requiring the reporter to exercise any discretion about the extent of harm which may have been caused or which may be likely (ACT, NT, SA, Tas., WA).

In the other three jurisdictions, the practical application of the duty to report sexual abuse would still result in reports of all suspected sexual abuse being required, as sexual abuse should always create a suspicion of significant harm. Suspicions of more minor child abuse and neglect may be referred to child and family welfare agencies, especially where jurisdictions have made more extensive provision for this (e.g., Vic., NSW, Tas.). It is also important to note that the duty to report also applies to suspicions that significant abuse or neglect is likely to occur in future, not only suspected cases of significant abuse or neglect that have already happened.

Table 2 provides an overview of the key features of the legislation in each state and territory: who must report, and what must be reported.

Table 2: Mandatory reporting requirements across Australia
  Who is mandated to report? What must be reported? Abuse and neglect types which must be reported Legal provisions

ACT

A person who is: a doctor; a dentist; a nurse; an enrolled nurse; a midwife; a psychologist; a teacher at a school; a person authorised to inspect education programs, materials or other records used for home education of a child or young person under the Education Act 2004; a police officer; a person employed to counsel children or young people at a school; a person caring for a child at a child care centre; a person coordinating or monitoring home-based care for a family day care scheme proprietor; a public servant who, in the course of employment as a public servant, works with, or provides services personally to, children and young people or families; the public advocate; an official visitor; a person who, in the course of the person's employment, has contact with or provides services to children, young people and their families and is prescribed by regulation

A belief, on reasonable grounds, that a child or young person has experienced or is experiencing sexual abuse or non-accidental physical injury; and

the belief arises from information obtained by the person during the course of, or because of, the person's work (whether paid or unpaid)

  • Physical abuse
  • Sexual abuse

Section 356 of the Children and Young People Act 2008 (ACT)

NSW

A person who, in the course of his or her professional work or other paid employment delivers health care, welfare, education, children's services, residential services or law enforcement, wholly or partly, to children; and

A person who holds a management position in an organisation, the duties of which include direct responsibility for, or direct supervision of, the provision of health care, welfare, education, children's services, residential services or law enforcement, wholly or partly, to children

Reasonable grounds to suspect that a child is at risk of significant harm; and

those grounds arise during the course of or from the person's work

  • Physical abuse
  • Sexual abuse
  • Emotional/ psychological abuse
  • Neglect
  • Exposure to domestic violence

Sections 23 and 27 of the Children and Young Persons (Care and Protection) Act 1998 (NSW)

NT

Any person

A belief on reasonable grounds that a child has suffered or is likely to suffer harm or exploitation

  • Physical abuse
  • Sexual abuse or other exploitation of the child
  • Emotional/ psychological abuse
  • Neglect
  • Exposure to physical violence (e.g., a child witnessing violence between parents at home)

Sections 15, 16 and 26 of the Care and Protection of Children Act 2007 (NT)

A health practitioner or someone who performs work of a kind that is prescribed by regulation

Reasonable grounds to believe a child aged 14 or 15 years has been or is likely to be a victim of a sexual offence and the age difference between the child and offender is greater than 2 years

  • Sexual abuse

Section 26(2) of the Care and Protection of Children Act 2007 (NT)

QLD

An authorised officer, a public service employee employed in the department, a person employed in a departmental care service or licensed care service

Has a reasonable suspicion that a child in care (a child placed in the care of an entity conducting a departmental care service or a licensee) has suffered, is suffering, or is at unacceptable risk of suffering, significant harm caused by physical or sexual abuse

  • Physical abuse
  • Sexual abuse

Part 1AA, Section13f of the Child Protection Act 1999 (Qld)

Relevant persons: doctors; registered nurses; teachers; a police officer who, under a direction given by the commissioner of the police service under the Police Service Administration Act 1990, is responsible for reporting under this section; a person engaged to perform a child advocate function under the Public Guardian Act 2014

Has a reasonable suspicion that a child has suffered, is suffering or is at an unacceptable risk of suffering significant harm caused by physical or sexual abuse; and may not have a parent able and willing to protect the child from the harm

  • Physical abuse
  • Sexual abuse

Part 1AA, Section 13e of the Child Protection Act 1999 (Qld)

School staff

Awareness or reasonable suspicion that a child has been or is likely to be sexually abused; and the suspicion is formed in the course of the person's employment

  • Sexual abuse

Sections 364, 365, 365A, 366, 366A of the Education (General Provisions) Act 2006 (Qld)

SA

Medical practitioners; pharmacists; registered or enrolled nurses; dentists; psychologists; police officers; community corrections officers; social workers; a minister of religion, a person who is an employee of, or volunteer in, an organisation formed for religious or spiritual purposes, (with the exception of disclosures made in the confessional); teachers in educational institutions including kindergartens; approved family day care providers; any other person who is an employee/volunteer in a government or non-government organisation that provides health, welfare, education, sporting or recreational, child care or residential services wholly or partly for children, being a person who is actively engaged in the delivery of those services to children or who holds a management position in the relevant organisation, the duties of which include direct responsibility for, or direct supervision of, the provision of those services to children

Reasonable grounds to suspect that a child has been or is being abused or neglected; and

the suspicion is formed in the course of the person's work (whether paid or voluntary) or carrying out official duties

  • Physical abuse
  • Sexual abuse
  • Emotional/ psychological abuse
  • Neglect

Sections 6, 10 and 11 of the Children's Protection Act 1993 (SA)

TAS

Registered medical practitioners; nurses; midwives; dentists, dental therapists, dental hygienists or oral health therapist; registered psychologists; police officers; probation officers; principals and teachers in any educational institution including kindergartens; persons who provide child care or a child care service for fee or reward; persons concerned in the management of a child care service licensed under the Child Care Act 2001; any other person who is employed or engaged as an employee for, of, or in, or who is a volunteer in, a government agency that provides health, welfare, education, child care or residential services wholly or partly for children, and an organisation that receives any funding from the Crown for the provision of such services; and any other person of a class determined by the Minister by notice in the Gazette to be prescribed persons

A belief, or suspicion on reasonable grounds, or knowledge that: a child has been or is being abused or neglected or is an affected child within the meaning of the Family Violence Act 2004; there is a reasonable likelihood of a child being killed or abused or neglected by a person with whom the child resides; or while a woman is pregnant that there is reasonable likelihood that after the birth of the child the child will suffer abuse or neglect, or may be killed by a person with whom the child is likely to reside, or that the child will require medical treatment or other intervention as a result of the behavior of the woman or another person with whom the woman resides or is likely to reside, before the birth of the child

  • Physical abuse
  • Sexual abuse
  • Emotional/ psychological abuse
  • Neglect
  • Exposure to family violence

Sections 3, 4 and 14 of the Children, Young Persons and Their Families Act 1997 (Tas.)

VIC

Registered medical practitioners, nurses, midwives, a person registered as a teacher or an early childhood teacher under the Education and Training and Reform Act 2006 or teachers granted permission to teach under that Act; principals of government or non-government schools within the meaning of the Education and Training Reform Act 2006; and police officers.

Belief on reasonable grounds that a child is in need of protection on a ground referred to in Section 162(1)(c) or 162(1)(d), formed in the course of practising his or her office, position or employment as soon as practicable after forming the belief and after each occasion on which he or she becomes aware of any further reasonable grounds for the belief

  • Physical abuse
  • Sexual abuse

Sections 182(1)(a)-(e), 184 and 162(c)-(d) of the Children, Youth and Families Act 2005 (Vic.)

Any adult

A reasonable belief that a sexual offence has been committed in Victoria against a child under the age of 16 years by another person of or over the age of 18 years must disclose that information to a police officer as soon as it is practicable to do so, unless the person has a reasonable excuse for not doing so . Failure to disclose the information to police is a criminal offence.

  • Sexual offence

Section 327 of the Crimes Act 1958

WA

Doctors; nurses and midwives; teachers or boarding supervisor; and police officers

Belief on reasonable grounds that child sexual abuse has occurred or is occurring and forms this belief in the course of the person’s work, whether paid or unpaid

  • Sexual abuse

Sections 124A and 124B of the Children and Community Services Act 2004

Court personnel; family counsellors; family consultants; family dispute resolution practitioners, arbitrators or legal practitioners independently representing the child's interests

Reasonable grounds for suspecting that a child has been: abused, or is at risk of being abused; ill treated, or is at risk of being ill treated; or exposed or subjected to behaviour that psychologically harms the child.

  • Physical abuse
  • Sexual abuse
  • Neglect

Sections 5, 160 of the Family Court Act 1997 (WA);

Commonwealth law

In addition to state and territory laws, the Family Law Act 1975 (Cth) creates a mandatory reporting duty for personnel from the Family Court of Australia, the Federal Magistrates Court and the Family Court of Western Australia. This includes registrars, family consultants and counsellors, family dispute resolution practitioners or arbitrators, and lawyers independently representing children's interests. Section 67ZA states that when in the course of performing duties or functions, or exercising powers, these persons have reasonable grounds for suspecting that a child has been abused, or is at risk of being abused, the person must, as soon as practicable, notify a prescribed child welfare authority of his or her suspicion and the basis for the suspicion.

What protections are given to reporters?

In all jurisdictions, the legislation protects the reporter's identity from disclosure. In addition, the legislation provides that as long as the report is made in good faith, the reporter cannot be liable in any civil, criminal or administrative proceeding.

About whom can notifications be made?

Legislation in all jurisdictions except New South Wales requires mandatory reporting in relation to all young people up to the age of 18 (whether they use the terms "children" or "children and young people"). In New South Wales, the legislative grounds for intervention cover young people up to 18 years of age, but it is not mandatory to report suspicions of risk of harm in relation to young people aged 16 and 17.

What type of concerns must be reported, and what may be reported?

Mandatory reporting laws specify those conditions under which an individual is legally required to make a report to the relevant government agency in their jurisdiction. This does not preclude an individual from making a report to the statutory child protection service if they have concerns for the safety and wellbeing of a child that do not fall within mandatory reporting requirements. All statutes enable people to report concerns for a child's welfare even if they do not compel such reports. Any voluntary non-mandated reports will receive the legal protections referred to above regarding confidentiality and immunity from legal liability.

Although particular professional groups (such as psychologists) or government agencies (such as education departments in some states) may have protocols outlining the moral, ethical or professional responsibility or indeed the organisational requirement to report, they may not be officially mandated under their jurisdiction's child protection legislation. For example, in Queensland, teachers are required to report all forms of suspected significant abuse and neglect under school policy, but are only mandated to report sexual abuse under the legislation.

In what cases can child protection and welfare agencies respond?

A common assumption is that mandatory reporting requirements, the legislative grounds for intervention, and research classifications of abusive and neglectful behaviour are the same. In fact, mandatory reporting laws define the types of situations that must be reported to statutory child protection services. Legislative grounds for government intervention define the circumstances and, importantly, the threshold at which the statutory child protection service is legally able to intervene to protect a child. Researchers typically focus on defining behaviours and circumstances that can be categorised as abuse and neglect. These differences arise because each description serves a different purpose; the lack of commonality does not mean that the system is failing to work as policy-makers had intended.

What are the benefits of mandatory reporting requirements?

Mandatory reporting is a strategy which acknowledges the prevalence, seriousness and often hidden nature of child abuse and neglect, and enables early detection of cases which otherwise may not come to the attention of helping agencies. Mandatory reporting requirements reinforce the moral responsibility of community members to report suspected cases of child abuse and neglect. The laws help to create a culture which is more child-centred, and which will not tolerate serious abuse and neglect of vulnerable children. The introduction of mandatory reporting and accompanying training efforts aim to enable professionals to develop an awareness of cases of child abuse and create conditions which require them to report those cases and protect them as reporters. Research has found that mandated reporters make a substantial contribution to child protection and family welfare.

Are there challenges with the introduction of mandatory reporting?

As the introduction of mandatory reporting requirements within a jurisdiction tends to increase reporters' and the community's awareness of child abuse and neglect, it can result in a substantial increase in the number of reports being made to child protection departments. If there are inadequate resources available to the responsible department to respond to the increased demand, then the increasing number of reports may result in services being overwhelmed with cases to investigate and lacking sufficient staffing to do so. It is important that mandated reporters receive training and accurate information to ensure they know what cases they have to report, and what cases they should not report. Since non-mandated reporters make a large proportion of all reports, it is also important for the public to be made aware of the appropriate extent of their responsibility. It is also essential that child and family support services be adequately resourced to respond to children and families in need of protection and assistance.

Further details and information about mandatory reporting can be obtained from the relevant statutory child protection authority in each jurisdiction. Contact and other details for each state and territory office can be found in Reporting Abuse and Neglect: State and Territory Departments Responsible for Protecting Children.

Further reading

  • Cashmore, J. (2002). Mandatory reporting: Is it the culprit? Where is the evidence? Developing Practice: The Child, Youth and Family Work Journal, 4, 9-12.
  • Drake, B., & Jonson-Reid, M. (2007). A response to Melton based on the best available data. Child Abuse & Neglect, 31, 343-360.
  • Kohl, P., Jonson-Reid. M,. & Drake, B. (2009). Time to leave substantiation behind: Findings from a national probability study. Child Maltreatment, 14(1), 17.
  • Mathews, B. (2012). Exploring the contested role of mandatory reporting laws in the identification of severe child abuse and neglect. In M. Freeman (Ed.), Current legal issues (Vol. 14: Law and Childhood Studies) (pp. 302-338). Oxford: Oxford University Press.
  • Mathews, B., & Bross, D. (2008). Mandated reporting is still a policy with reason: Empirical evidence and philosophical grounds. Child Abuse & Neglect, 32(5), 511-51.
  • Mathews, B., Bromfield, L., Walsh, K., & Vimpani, G. (2015). Child abuse and neglect: A Socio-legal study of mandatory reporting in Australia - report for the Tasmanian Government. Brisbane: Queensland University of Technology.
  • Mathews, B., & Kenny, M. (2008). Mandatory Reporting legislation in the USA, Canada and Australia: A cross-jurisdictional review of key features, differences and issues. Child Maltreatment, 13, 50-63.
  • Melton, G. (2005). Mandated reporting: A policy without reason. Child Abuse & Neglect, 29, 9-18. Tomison, A. (2002). Mandatory reporting: A question of theory versus practice. Developing Practice: The Child, Youth and Family Work Journal, 4, 13-17.

For more resources, visit the CFCA mandatory reporting bibliography

1 There may also be legal requirements for various professionals to report other child related conditions to various authorities (i.e., certain diseases, the occurrence of injuries in children attending schools or day care, and incidents of domestic violence related to adult victims). This sheet does not relate to those circumstances but is specific to the reporting of child abuse and neglect to child protection authorities.

Authors and Acknowledgements

This paper was updated by Joanne Commerford, Research Officer with the Child Family Community Australia information exchange at the Australian Institute of Family Studies.

The 2014 version was authored by Ben Mathews, Associate Professor at QUT School of Law, and Deborah Scott, Research Fellow at the Australian Institute of Family Studies.

Previous editions of this paper have been compiled by Deborah Scott, Daryl Higgins, Leah Bromfield, Nick Richardson, Prue Holzer and Claire Berlyn.

Feature image: Bubble catcher, CC BY-SA 2.0.

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CFCA Resource Sheet
Published by the Australian Institute of Family Studies, May 2016.
Last updated May 2016

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